Code of Conduct case - Investigation failed to establish that employee behaved inappropriately during a tender process—conflict of interest

An Executive
Level 1 employee was found to have had a conflict of interest and breached
section 13(7) of the Code of Conduct for scheduling a meeting with a company
that was a potential tenderer for a large services contract shortly to go to
the market. The employee arranged for the company to give a briefing on its
services to his team. The agency breach decision-maker found that arranging the
meeting was contrary to the employee's probity obligations and his actions
created a potential risk to the probity of the tender process.

The employee
sought review by the Merit Protection Commissioner arguing that at worst he
made an error of judgement in organising the meeting.

The meeting with
the company took place a fortnight before the release of the request for
tender. The Merit Protection Commissioner observed that the period leading up to advertising a large tender process is
likely to be sensitive. There is likely to be speculation in the industry about
when the agency is going to the market. Potential suppliers are also likely to
be observing the agency and its staff carefully. The Merit Protection
Commissioner considered that the employee's actions (permitting the company to
make a presentation to his staff so close to the release of a request for
tender) created a small risk that companies interested in tendering might consider
the company was given an unfair advantage.

The Merit
Protection Commissioner commented that in normal circumstances a manager should
have avoided putting the agency in a position where there may be a risk to a
tender process. The employee argued there was nothing unusual about his contact
with the company describing it as 'business as usual'. The Merit Protection
Commissioner found this claim plausible, noting that the agency's misconduct
investigation failed to establish whether the employee knew that the tender was
about to be released. The investigation also failed to establish whether the
employee was, or should have been, aware of the sensitivity of his actions.

The Merit
Protection Commissioner had regard to the agency's probity guidance which focused
on employees' obligations after the request for tender was released. The
guidance said nothing about employee's obligations when engaging with companies
on business as usual matters in the period prior to the advertising of the
request for tender. For these reasons, the Merit Protection Commissioner was
not confident that the employee was aware of the possible consequences of his
actions.

The Merit
Protection Commissioner concluded that, while meeting with a potential tenderer
created a small risk to the tender process, the employee did not engage in
misconduct. The Merit Protection Commissioner recommended that the agency set
aside the determination that the employee had breached section 13(7) of the
Code of Conduct. The agency accepted the recommendation.